Scott v Gavigan [2016] EWCA Civ 544

Case No B3/2014/2418/PTA[2016] EWCA Civ 544
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
MR RECORDER HOLLINGTON QC
1UD13419
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 th June 2016
Before
LORD JUSTICE ELIASLORD JUSTICE CHRISTOPHER CLARKELORD JUSTICE SIMON
Between
MR DARREN SCOTTAppellantMR NICHOLAS JOSEPH GAVIGANRespondent
Robert Whittock (instructed by The Associate Law Firm) for AppellantNiall Maclean (instructed by DWF LLP) for RespondentHearing Hearing date : 24 May 2016
JudgmentLord Justice Christopher Clarke :
[1]The question in this case is whether the judge – Mr Recorder Hollington QC – was wrong to decide that the claimant, Darren Scott, was wholly responsible for the accident that occurred when he ran across the road into the path of an oncoming moped driven by Nicholas Gavigan, the defendant. The claimant appeals to this court with the leave of Fulford and Richards LLJ that leave being confined to the judge’s decision on liability. He does not have permission to appeal the judge’s findings of fact.

The facts

[2]The facts as found by the judge are within a relatively short compass. On Sunday 13 July 2008 the defendant was riding his 125cc Honda motorbike along Valley Road, Lambeth, London. It was dusk but the street lights were on. It was dry and visibility was good. The defendant was travelling in a broadly northerly direction. The claimant, whose birthday it was, was walking towards a pub to have a drink with his friends and listen to a band. He was on the pavement on the opposite side of the road to that on which the defendant was travelling, walking in a southerly direction.[3]The place where the accident happened is shown on the photograph attached to this judgment. The accident occurred as the defendant approached what the judge described as an informal pedestrian crossing. This consisted of two bollards in the middle of the road each on a small raised kerbed island with a gap in between the two islands for stopping half way across the road. On each nearside of the road just before the crossing there were speed bumps. There were hatched road markings in the middle of the road before and after the bollards to warn approaching motorists of their existence. There were also ramps leading down from the pavement to the road with paving stones with raised spots to assist pedestrians with disabilities or parents with buggies.[4]The road is long and straight and has a 30 mph speed limit. There is predominantly housing and commercial property along its entire length, with pavements for pedestrians. At the time of the accident there were cars parked along the nearside of the road along which the defendant was travelling. There were no cars parked on the other side of the road on the pavement along which the claimant was walking before he crossed the road.[5]The claimant remembered walking towards the scene of the accident. But he had no recollection of the accident itself and could, therefore, give no explanation of it, or say where he crossed the road. He denied being drunk but was confronted with medical records which indicated that in about 2006 he had a drink problem. The judge was not persuaded that he was a reliable witness. By contrast he found the defendant to be a reliable witness and he accepted his evidence as to how the accident happened.[6]The defendant was a learner driver with a provisional licence which allowed him to ride bikes up to 125 cc. He had no previous convictions. He was travelling, so he said, at about 30 mph in 3rd gear. The accident happened at the location shown in the photograph. The impact between the moped and the claimant occurred at the spot marked “X1”, being about, or a little over, 10 metres from the southernmost bollard. The defendant first saw the claimant in the act of crossing the road when he, the defendant, was about 20 meters away from the first bollard. The claimant ran across the road when he was about 10 metres from the defendant and ran towards him. The defendant tried to swerve to avoid the claimant but ended up clipping his trailing leg. The claimant ended up at the spot to the nearside marked “X2” and the defendant, who came off his moped, ended up at “X3”. The claimant suffered a significant injury to his lower right leg which required a skin graft.[7]The defendant accepted that he had not braked on his approach to the pedestrian crossing. The claimant ran out before the defendant would have braked in order to navigate over the bumps. He did, however, brake when he saw the claimant and tried to avoid him, as well as sounding his horn. The collision sent the claimant into the air but the main injury that he suffered was the damage to his calf as a result of the initial impact with the moped.[8]The judge held that at that point in the road an ordinary prudent motorcyclist would have been travelling at a slower speed than 30 mph. The defendant should have been braking earlier so as to be travelling at no more than 20 mph by the time that he first saw the claimant in the act of crossing the road.[9]The judge also held that on the balance of probabilities the collision would not have occurred had Mr Gavigan’s speed been 20 mph and not 30 mph.[10]As to the claimant, the evidence of Mrs Adrianova, who was called as a witness for him, was that he was “very drunk”. The defendant’s evidence was to the same effect. The judge found that the claimant had drunk significantly more than he admitted (which was one can of lager at lunch and one at supper) such that his ability to take care of himself and other road users was significantly impaired. He thought he could cross the road at the point at which he did so safely without looking carefully or at all to his left because he thought he could stop and look left in the middle before completing his crossing. In his alcohol induced state he probably thought he was much closer to the bollards than he was. He did not look carefully to the left and ran into the path of an oncoming motorcyclist who was much nearer to the centre of the road than the claimant had calculated when he started crossing. Even if the defendant had been travelling at 20 mph he would have had to take emergency evasive action so as not to crash into the claimant. In all probability he would have missed him but it was a real possibility that he would still have crashed himself. The judge’s conclusions[11]The judge concluded that it was the claimant who was entirely to blame for the accident. The fact that the defendant should have braked earlier was the limit of his negligence. The judge was not satisfied that he was travelling in excess of the speed limit. The risk of the claimant crossing the road at least 10 metres away from the crossing was not one that he should reasonably have foreseen. The claimant’s responsibility was far greater than that of the defendant given his gross carelessness fuelled by excessive consumption of alcohol and the fact that his actions in crossing the road were of equal damage to the defendant as they were to himself. The police notes recorded that in the immediate aftermath of the accident the claimant had admitted that the accident was his fault which, the judge found, supported his conclusion that he was, indeed, entirely to blame. The claimant’s own reckless behaviour was the sole and effective cause of the accident. This was a case where “the conduct of the claimant is so wholly unreasonable and/or of such overwhelming impact that that conduct eclipses the defendant’s wrongdoing and constitutes a novus actus interveniens”: Clerk & Lindsell on Torts (20th ed) para 2 -119 or, as the defendant put it in the skeleton argument, “[the claimant] was entirely the author of his own misfortune”. The claimant’s submissions Foreseeability

The claimant’s submissions

[12]Mr Robert Whittock on behalf of the claimant submits that the judge was in error. He rightly found(a) that the defendant should have been travelling at 20 mph;(b) that it was negligent of him to be travelling at a greater speed; and(c) that if he had been travelling at 20 mph he would have missed the claimant. But he was wrong to find that the risk that presented itself to the defendant was not a risk that he should reasonably have foreseen.[13]Mr Whittock referred to a passage in Clerk & Lindsell which reads: “Again failure to anticipate carelessness on the part of others is regarded as carelessness in itself (Lang v LTE [1959] 1 WLR 1168. Foskett v Mistry [1984] RTR). In a well known passage Lord Uthwatt said: “[1] dissent from the view that drivers are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians will behave with reasonable care. It is common experience that many do not. A driver is not, of course bound to anticipate folly in all its forms, but he is not entitled to put out of consideration the teachings of experience as to the form those follies commonly take”. “[1] dissent from the view that drivers are entitled to drive on the assumption that other users of the road, whether drivers or pedestrians will behave with reasonable care. It is common experience that many do not. A driver is not, of course bound to anticipate folly in all its forms, but he is not entitled to put out of consideration the teachings of experience as to the form those follies commonly take”.[14]In the present case, he submits, it was entirely foreseeable that a pedestrian might attempt to cross the road where the claimant did. The fact that the claimant had passed the informal pedestrian crossing did not mean that his doing so was not foreseeable since people may well cross the road in the vicinity of a crossing. Accordingly the judge ought to have made a finding apportioning liability.[15]The defendant’s evidence was that he could see the claimant from roughly 500 metres away; at that time the claimant was in line with the bollards – the spot is marked by the higher “X” on the right hand side of the photograph. He was doing nothing out of the ordinary, simply walking along the pavement. He did not, however, stop at the bollards but continued walking on. The defendant assumed that the claimant did not want to cross the road. Then, when the claimant was about 10 metres away from the defendant, the claimant started to run across the road towards him, starting from the lower “X” on the right hand side which is linked on the photograph by a line to “X1”.[16]In my judgment the judge was entitled to reach the conclusion that he did. Given that the defendant had seen the claimant pass the bollards, the appointed and natural place for anyone to cross, and then proceed some 10 metres onwards, it was open to the judge to hold that it was not reasonably to be foreseen by him that the claimant would, when the defendant was 10 metres away, run out into the road towards him, crossing over onto his side of the road and into the path of the moped which he was driving on the correct side. The claimant had given no indication of any intention to cross the road and his progress down the pavement indicated the opposite. There was nothing in the way in which he conducted himself that indicated that he was or might be drunk or disturbed. The action of the claimant was not a commonplace (as when cars or motorcycles emerge from side roads - Lang v LTE, where the defendant bus driver was aware from his experience that sometimes persons would emerge suddenly from the side road in question) but an egregious folly.[17]In one sense any sort of foolishness is foreseeable. As is well known, some people do silly or absurd things; or deliberately take risks. The question is, however, whether what happened was the sort of thing that, in the applicable circumstances, this defendant, acting reasonably, ought to have foreseen, such that the claimant ought to have been in his contemplation as someone likely to be affected by any failure of his to brake sooner.[18]My conclusion that the judge was entitled to make the finding of want of foreseeability that he did is, as Mr Whittock accepts, sufficient to uphold the judgment. It was not incumbent on the defendant to take steps to avert a risk of which he neither was nor should have been aware. I will therefore deal only briefly with some of the issues argued before us.[19]Mr Maclean for the defendant submits that the judge was right in the conclusion that he reached but wrong to find that the defendant should have been travelling any slower than he was. The basis upon which the judge did so was that having regard to(a) the narrowness of the road with parked cars to the defendant’s left and his need to drive towards the centre of the road,(b) the state of the light and(c) the approaching pedestrian crossing with road markings the defendant should have been braking earlier. He had regard to rules 124 to 126 of the Highway Code and in particular to the fact referred to in section 126 that the safe stopping distance for a car travelling at 30 mph was 23 metres and for a motorcycle was greater. An ordinary prudent motorist approaching the pedestrian crossing would have been travelling at a speed that enabled him to stop, if he had to, at the bollards. At just over 20 metres to go before the crossing a safe speed would have been 20 mph. I take that to be based on the distance which the defendant was from the crossing when the defendant first saw the claimant i.e. 20 metres and a comparison between the stopping distance of 23 metres for a car driven at 30 mph and 12 metres for one driven at 20 mph.[20]Circumstance (a) does not seem to me to impose any obligation on the defendant to drive any slower than he did. His evidence was that he could see a considerable distance ahead and was paying attention. There were no apparent dangers and he had left a gap between his moped and the cars parked to his left to avoid any problem that might arise if an offside door was opened. There was no finding that his speed would be likely cause him any later difficulty in navigating past the bump and the bollards.[21]As regards (b) no one suggested that the state of the light posed any problems and the evidence of the defendant was that he could see at least 500 metres up the road and visibility was very good.[22]As regards (c) I am persuaded that, in the light of his finding that the claimant’s crossing the road towards him was not a risk that the defendant should reasonably have foreseen, the judge has fallen into error.[23]Rule 124 of the Highway Code is not relevant since the judge has found that the defendant was not exceeding the speed limit. Rule 125, which calls for a reduction in speed if, inter alia, the road is being shared with pedestrians, cyclists and horse riders, particularly children and motorcyclists, would not appear to be engaged on the facts. Rule 126 gives typical stopping distances and enjoins the driver to drive at a speed that will allow him to stop well within the distance he can see to be clear, and in particular to leave enough space between him and the vehicle in front so that he can pull up safely if it suddenly slows down or stops. But in the present case there were, on the defendant’s evidence, no vehicles in front of him nor was the crossing occupied nor was anyone at it intending or likely to cross. Thus the defendant was traveling at a speed that allowed stopping well within the distance he could see to be clear. On the judge’s findings there was not a risk that the defendant should have foreseen of the claimant crossing over to his side of the road. Further the judge’s analysis, taken to its logical conclusion, would appear to mean that the closer the defendant got to the crossing the more would it be necessary for him to reduce his speed and ultimately stop.[24]The position would have been different if there were pedestrians about on his nearside, which there were not, since the defendant had passed them, or if the defendant ought to have foreseen that the claimant might rush out towards him. As neither of those was the case the finding of negligence, is not, in my judgment sustainable. The judge’s factual findings and his conclusion as to want of foreseeability are at variance with his finding of negligence. Accordingly I would dismiss the appeal on that ground also.

But for causation

[25]Second, Mr Maclean submits that even if the defendant had been travelling at 20 mph the accident would still have happened. The claimant was some 10 metres from the defendant when he ran out. The stopping distance of a car at 20 mph is about 12 metres and that of a motorcycle is greater. The claimant ran towards the defendant so that the “closing” effect would make it markedly more difficult to avoid making contact with him. Further in swerving to the left, a natural reaction, for which the defendant could not be criticised, he would in some degree track the path of the claimant. In those circumstances the judge should, Mr Maclean submits, have concluded that the accident probably would still have happened if the defendant had been travelling at 20 mph; the only way to avoid a collision would have been to be travelling at a speed considerably in excess of the speed limit or so low that it would not have been reasonable to expect him to travel at it.[26]I do not regard the judge as having reached, in this respect, a finding of fact to which was not entitled to come. The circumstances of the accident were that the claimant was running across the road and thus across the path of the defendant. The defendant swerved to his left and clipped the claimant on his trailing leg. In other words he nearly missed him. It was open to the judge to find that if he had been going 10mph slower he would have missed him.

Novus actus interveniens

[27]Mr Whittock for the claimant further submits that the judge was wrong to find that the claimant’s gross carelessness fuelled by excessive consumption of alcohol and the fact that his action in crossing the road was of equal danger to the defendant meant that his behaviour was so wholly unreasonable and/or of such overwhelming impact that that conduct eclipsed the defendant’s wrongdoing. Spencer v Wincanton Holdings Ltd[28]Both sides placed reliance on the judgment of this court in Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404. In that case a claimant suffered a relatively minor injury to his right knee at work. As a result of subsequent complications he had to have an amputation of the leg above the knee, for which liability was accepted. The issue was whether he was entitled to recover in respect of a subsequent injury which made him wheelchair dependent, caused when he attempted to fill his car with petrol without wearing his prosthesis or using his sticks.[29]Sedley LJ referred to the decision of the House of Lords in McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621 and said: 10. For all material purposes the single reasoned speech is that of Lord Reid…. The key passage (at 1623 E-I) is this:
"In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus. It only leads to trouble if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does he cannot hold the defender liable for the consequences. So in my view the question here is whether the second accident was caused by the appellant doing something unreasonable." [Bold added in this and other citations] 11. The difficulty with which this formulation presents trial courts is that "unreasonable" is a protean adjective. Its nuances run from irrationality to simple incaution or unwisdom. It is helpful to locate its correct position on the scale of meanings by recalling that its purpose in this context is to determine the point at which the law regards a consequence as too remote. 12. The account of remoteness on which Mr Nolan founds is that described by Lord Rodger in Simmons v British Steel plc [2004] UKHL 20: "
These authorities suggest that, once liability is established, any question of remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid; Bourhill v Young [1943] AC 92, 101, per Lord Russell of Killowen; Allan v Barclay (1864) 2 M 873, 874, per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid: Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546. (3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent that was foreseeable, or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837, 847, per Lord Reid. (4) The defender must take his victim as he finds him: Bourhill v Young [1943] AC 92, 109-110, per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 SLT 41, 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] AC 155, 197F-H per Lord Lloyd of Berwick. " 13. It seems to me problematical, with respect, to try to explain remoteness in terms of foreseeability. If anything, it is foreseeability which has to be explained in terms of remoteness. There is an illuminating account of the meaning of legal foreseeability in the judgment of Eveleigh J (as he then was) in Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006, 1009-1111, which, without reproducing it here, seems to me a practical account entirely consonant with Lord Rodger's summary. 14. As Lord Bingham, having cited Lord Rodger's summary, went on to explain in his speech in Corr v IBC Vehicles Ltd [2008] UKHL 13, "the rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness" (§15). This reflects the exegesis of the philosophical and legal literature on the topic given by Lord Nicholls in Kuwait Airways Corporationv Iraqi Airways Co(#4 and 5) [2002] UKHL 19:
"69. How, then does one identify a plaintiff's "true loss" in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant's liability for the plaintiff's loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple "but for" test, is predominately a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment. 70. The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment ("ought to be held liable"). Written large the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are unchangeable). To adapt the language of Jane Stapleton in her article "
Unpacking 'Causation'" in Relating to Responsibility, ed Cane and Gardner (2001), p 168, the inquiry is whether the plaintiff's harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause or because the loss was the product of an intervening cause. The defendants' responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this." 15. Fairness, baldly stated, might be thought to take things little further than reasonableness. But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor.” "In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus. It only leads to trouble if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does he cannot hold the defender liable for the consequences. So in my view the question here is whether the second accident was caused by the appellant doing something unreasonable." "These authorities suggest that, once liability is established, any question of remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid; Bourhill v Young [1943] AC 92, 101, per Lord Russell of Killowen; Allan v Barclay (1864) 2 M 873, 874, per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25, per Lord Reid: Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546. (3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent that was foreseeable, or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837, 847, per Lord Reid. (4) The defender must take his victim as he finds him: Bourhill v Young [1943] AC 92, 109-110, per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 SLT 41, 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] AC 155, 197F-H per Lord Lloyd of Berwick. " "69. How, then does one identify a plaintiff's "true loss" in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant's liability for the plaintiff's loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple "but for" test, is predominately a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment. 70. The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment ("ought to be held liable"). Written large the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are unchangeable). To adapt the language of Jane Stapleton in her article "Unpacking 'Causation'" in Relating to Responsibility, ed Cane and Gardner (2001), p 168, the inquiry is whether the plaintiff's harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause or because the loss was the product of an intervening cause. The defendants' responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this."[30]In his judgment in Spencer v Wincanton Aikens LJ said this:
“39 In this case, the suggested novus actus interveniens that "breaks the chain of causation" so that Wincanton is not liable for the consequences of the second accident is the unreasonable conduct of the claimant, Mr Spencer. In the Scottish case of McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC (HL) 20, [1969] 3 All ER 1621, Lord Reid stated (at pages 25 and 1623 respectively) that "if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens". 40 When Lord Reid considered the facts of that case he held that the chain of causation from the original tortious act of the defender was broken by a combination of two things. First, the pursuer's knowledge that his leg was likely to give way suddenly and without warning; and secondly, the pursuer's decision to start the descent of very steep stairs without a handrail, ahead of his adult family, with only his child to help him and not taking greater care in doing so. But Lord Reid also said that the pursuer's decision to try and jump when he realised he had lost his balance was no more than an error of judgment. That act was not, in itself, unreasonable conduct. 41 Lord Rodgers cites the McKew case in support of his second qualification in Simmons.As I have already noted, Lord Bingham quoted the whole summary of the Lord Rodgers' five points, including the citations, in Corr. 42 Lord Reid did not expand on what he meant by "unreasonable conduct". In the English case of Emeh v Kensington and Chelsea and Westminster Area Health Authority[1984] 3 All ER 1044 at 1049e, Waller LJ referred to Lord Reid's speech in McKew.Waller LJ quoted the passage where Lord Reid dealt with the argument about the effect of the pursuer's decision to jump when he started to lose his balance, which Lord Reid held was not unreasonable conduct. Waller LJ continued: "So the degree of unreasonable conduct which is required is, on Lord Reid's view, very high". 43 In the current and previous edition of Clerk & Lindsell on Torts(para 2-97 of the current edition), it is submitted that "for the claimant's subsequent conduct to be regarded as a novus actus interveniens it should be such as can be characterised as reckless or deliberate". Speaking for myself, I regard that as an unhelpful suggestion which is not warranted by any decision cited to us. Nor is it supported by the passage in the decision of Evans-Lombe J in Barings plc (in liquidation) v Coopers & Lybrand (a firm) [2003] EWHC 1319 (Ch), which is cited in the footnote at the end of the sentence in Clerk & Lindsell that I have quoted. Indeed, Evans-Lombe J refers to the McKew case and others when considering the test for what may constitute a break in the chain of causation from a particular act of negligence. He says (citing a dictum of Roskill LJ in the Court of Appeal in Lambert v Lewis [1982] AC 225 at 252C) that the act need not necessarily be reckless. Evans-Lombe J states, correctly in my view, that "what will constitute such conduct is so fact-sensitive to the facts of any case where the issue arises that it is almost impossible to generalise". 44 I would accept that there is, inevitably, a degree of tension between: (a) certain conduct of a claimant such that the defendant whose liability for prior negligence is established is not responsible for the consequences of events following that conduct; and (b) certain conduct of a claimant which is such that the defendant remains responsible for those consequences, but his liability is reduced because the claimant is held to be contributorily negligent within the terms of the Law Reform (Contributory Negligence) Act 1945.After all, a claimant will only be held contributorily negligent under section 1(1) of 1945 Act if (a) he has been at "fault", i.e. he has not acted with reasonable care in the circumstances, and (b) that "fault" has had a causative effect on the injury or other damage. 45 The line between a set of facts which results in a finding of contributory negligence and a set of facts which results in a finding that the "unreasonable conduct" of the claimant constitutes a novus actus interveniens is not, in my view, capable of precise definition. The cases I have referred to have provided guidance. But, in my view, each case will depend on the facts and, in Lord Nicholls' phrase, the court will have to apply a value judgment to the facts as found.”

The defendant’s submissions

[31]Mr Niall Maclean for the defendant submits that the judge’s findings summarised in paragraph 11 above constituted a value judgment on the facts found and were well within the range of decisions open to him. He was entitled to regard as significant the fact(a) that the claimant was so intoxicated that his ability to care for himself and other road users including the defendants was significantly impaired;(b) that he ran at the moped in the direction shown on the photograph such that even if the defendant had been travelling at 20 mph there was a real possibility that he would still have crashed;(c) that the risk which actually presented itself to the defendant, namely that the claimant would run into the road directly at the defendant’s moped when he had already walked some 10 metres past an obvious crossing point, and when the claimant was only some 10 metres away from him, was, as he found, something that the defendant could not reasonably have foreseen;(d) that the claimant was grossly careless and his actions of equal danger to the defendant as to himself when, by comparison, the defendant had merely not braked sooner. The defendant’s extra 10 mph was nothing more than a causa sine qua non; not a causa causans. It was – to depart from the Latin habitually used in this context – not a legally operative cause.[32]I entertain considerable doubt as to whether it was open to the judge to find that the way in which the claimant acted was such that his actions must be regarded as a novus actus. It is apparent from the cases to which I have referred that the actions of the claimant may be such that the defendant is not responsible even for damage which is a foreseeable result of the defendant’s carelessness, although the authorities that have considered this question are authorities where a defendant had been held liable or has accepted liability for some injury and the question is whether a later injury is one for which he and not the defendant is responsible.[33]The circumstances in which that may be so are incapable of precise definition and involve the making of a value judgment. Aikens J held that recklessness was not a pre-condition for denying the claimant the right to recover; but the fact that something less than recklessness may suffice suggests that, if recklessness is established, as the judge held that it was, that may well be a sufficient condition. For an example where recklessness broke the chain of causation see Wright v Lodge [1993] 4 All ER 299.[34]In the present context it would seem to me right to require pretty exceptional circumstances to deny a claimant who has surmounted the hurdles of foreseeability, negligence and causation any remedy at all. Claimants who (for whatever reason) run out into the road without thinking are, sadly, not infrequent. Such conduct is usually very careless and may well be properly characterised as reckless. Defendants who collide with such claimants may well not be held to be negligent or, if they are, the claimant may be found to be contributorily negligent to a high degree. Since, however, the reason for imposing any liability on the defendant is because, in the circumstances, he should have foreseen the risk which materialised and, for that reason, owed a duty to take care not to injure even the foolish, I find it difficult to see why he should be absolved of all liability and the claimant denied any relief save in extreme circumstances. These might arise if, for instance, a group of youths were engaged in goading each other to run as close to oncoming traffic as was possible.[35]If in a case such as the present the fact that the claimant ran out into the road - on the judge’s findings because he thought he could stop and look left in the middle before completing his crossing and thought that he was much closer to the bollards than he was - disentitles him to any recovery at all, there will be many cases which heretofore have attracted awards of damages, heavily reduced for contributory negligence, in which recovery is denied: see e.g. Belka v Prosperini [2011] EWCA Civ 623 (claimant runs across the road into the path of an oncoming taxi: 2/3rd contributory negligence (CN); Stewart v Glaze [2006] EWHC 704 (claimant runs out into road without warning: he fails to recover but, in the alternative CN 75%; Parmasivan v Wicks [2013] EWCA Civ 262 (“very careless” 13 year old claimant runs into road on the offside of the claimant and into the claimant’s car: CN 75%).[36]Since, however, the judge’s judgment falls to be upheld for the reasons I have stated I do not propose to consider this part of the judge’s judgment any further.[37]In the circumstances no question of apportionment arises.[38]I would, accordingly, dismiss the appeal.

Lord Justice Simon:

[39]I agree.

Lord Justice Elias:

[40]I, also, agree.

Cited in 2 later judgments